Read Time:7 Minute, 4 Second
The State of The Nation Address Bill has generated some furore between the Senate and the presidency. Nonetheless, it is welcome as it helps our democracy to grow and develop. Besides, debate remains the hallmark of politics, hence must be encouraged rather than suppressed.
The bill was first introduced in the last Senate by the Deputy Senate President (as he was and still is in the present Senate), Senator Ike Ekweremadu. It was presented to Mr. President for assent after being passed by both Houses of the National Assembly. But for some reasons, the bill alongside some others, like the National Tobacco Control Bill and the National Health Policy Bill, to name but a few suffered the president's "pocket veto".
The bills consequently lapsed and were returned to the 7th National Assembly with the implication that their processing into laws would have to start "de novo".
However, in returning the bill, the president proposed some amendments that were presented to the Senate by the Senate Leader, Victor Ndoma-Egba, for reconsideration in respect of the bill. This is the background.
In contributing to this interesting debate, I submit as follow: One is the State Of The Nation Address Bill desirable in the first instance
and why? I would answer YES! It is true that the Nigerian Constitution has conferred some similar power in the bill to the President under section 67, "Right of attendance of President" particularly in sub section (1) but for the clause "as he considers to be of national
importance", which makes it "discretionary ".
It would appear to me that the Senate in its wisdom must have felt the discretionary power conferred on the President has not been diligently and/or sufficiently exercised, hence the need to compel the President to act through the bill when it becomes a law. There had been so many issues which the National Assembly expected the President to address its joint sitting on but which never was- security, economic and social. At a point, the House of Representatives possibly, out of frustration even “summoned” the President to address it on some national security concerns to no avail. The Nigerian constitution as amended under section 4 subsection 2 says: “The National Assembly shall have power to make laws for peace, order and good government of the federation or any party thereof.
This is an omnibus clause conferring enormous powers on the National Assembly that could be easily exploited to compel the President to act in a particular manner considered desirable for public good. Also, the National Assembly could have felt a sense of alienation of the people they represent by the President through his failure/unwillingness to present the State of the Nation Address to their elected representatives. A law making it mandatory for the President may just be a way out in the circumstance.
I hasten to add that compelling the President to present State of the Nation Address will be consistent with good governance and
international democratic best practices. America and South Africa are good examples in this regard.
Two, once a Bill has been passed by the National Assembly and forwarded to the President, what the Constitution says is that "he
shall within thirty days thereof signify that he assents or that he withholds assent" (S.58 sub 4 of FRN 1999 Constitution as amended). It is a closed ended situation-simple "yes" or "no" (as Lagbaja would say). Proposing amendments after the bill has been passed is akin to attempting to procure an abortion after the baby is born.
The president through the Attorney-General or some other aides ought to have made input at the public hearing stage which virtually all bills passed by the National Assembly go through before their passage.
What options for the president?
The first is to sign the bill into law despite his objection and then seek amendment to the law through another bill. The second is to sign the bill into law and then seek the Supreme Court's declaration on areas of perceived constitutional infractions in the law. "Obey first and then complain!" (As the Nigerian Police would say).
This will be in line with the principle of separation of powers. The President cannot on his own declare constitutional infraction on a
bill passed by the National Assembly without judicial intervention through the court.
I still remember two cases where the Supreme Court declared certain acts of the National Assembly unconstitutional. One was the overriding of President Obasanjo's veto on the 2003 Electoral Act by 2/3 majority of members present at sitting as opposed to 2/3 majority of the entire members of the National Assembly.
The second was an act passed by National Assembly to monitor/investigate local government funds, a function of the State
House of Assembly which the National Assembly tried to usurp. It was declared unconstitutional, null and void. However, as remarked by the Senate President, Senator David Mark, the senate would appear to have boxed itself into a "cul-de-sac" which the President took advantage of to propose his amendments albeit unconstitutionally.
The Senate Standing Orders 2011 as amended, section 88 sub-section (c) says: “If the Conference Committee accepts the president’s amendments to the Senate and House of Representatives, and the amendments adopted by the Senate and House of Representatives, then the Bill shall be sent to the President for assent".
This provision in the Senate Rules (and possibly in House Rules), could have been designed to create exit strategy for recurrent crisis
between the Presidency and the National Assembly over several unsigned bills particularly under the Obasanjo Presidency. It might as well be an attempt by the National Assembly to provide a soft-landing for a recalcitrant president without taking onboard the constitutional implication.
A rule of the National Assembly (the Senate or the House) no matter how well intentioned is inferior to the Constitution as expressly
stated in Section 1, sub section 1 of the Nigerian Constitution as amended (Supremacy of the Constitution). The Senate in spite of boxing itself into a corner via Senate Rule 88 sub section (c.) has not left itself without a comforter or a fallback position.
This is found in Senate Rule 88 subsection (d.) which says "If the conference Committee rejects the President's amendments and recommends the application of the two-thirds rule and said the report is accepted by the Senate and the House of Representatives, then the bill becomes law without the president’s assent if it is passed by two-thirds majority of the Senate and House of Representatives.” At least, by this clause, the National Assembly would have fulfilled the provision of section 58, sub-section (5) of the Constitution of the FRN as amended, albeit through an adulterated process.
The Senate, having realised it boxed itself into a corner through Rule 88(c), may now consider it expedient to relieve itself of the
self-imposed burden by expunging this controversial provision from the Senate Standing Orders. Notwithstanding, an adamant National Assembly bent on having its way would still have succeeded in achieving same through the application of its Constitutional power to veto through the 2/3 majority vote. On the other hand, a recalcitrant President, head or tail, would have "lost" in his bid to get the National Assembly accede to his proposed amendments.
However, the "loss" may just be temporary if he proceeds to the Supreme Court and succeeds in getting the court to quash any perceived Constitutional violations in the law so passed despite the president's expressed reservations.
In the final analysis, development of Constitutional Democracy is not and should not be about who wins and who loses, the National Assembly or the Presidency. Neither should it be about legislative chest-beating nor presidential ego. It should be about good governance and the rule of law with a view to improving the quality of life of the citizenry. This is the essence of law.
-Mamora, a former Speaker of the Lagos State House of Assembly, was also senator, Lagos East, between 2003 and 2011